Musings of UBC Law students

We’re all a bunch of trees.

Did you know that the Canadian constitution has been described as a ‘living tree’? Alright, so if you’re a 1L, you’ve already made up a drinking game based on how many times you hear this expression. I seem to hear it an average of five times a day, which amounts to something close to A LOT after a month of law school. While thinking of the million and one things I could write about for my first blog as a law student at Allard Hall, it wasn’t surprising that this phrase kept popping in my head. And I must admit, I’ve become a fan (and no, not because I’m playing the drinking game while writing this). To me, this phrase seems to be the perfect guide to law school itself. Hear me out.

The living tree doctrine emerged from the statements of Lord Sankey (whose name, by the way, is fashionably hipster for a lord) in the famous Persons case. The gist of the living tree doctrine is that the constitution of Canada is an evolving, organic entity, and should be interpreted in a way that acknowledges its roots and foundational concepts, but allows room for growth and evolution in a changing world. Like many other doctrines in any discipline, it seeks to strike a healthy balance between two often tenuous goals, in this case stability vs flexibility. I can’t think of a better metaphor for a constitution than a living tree. It evokes stability and predictability: trees don’t often grow into zebras, so unpleasant surprises are avoided. Yet the tree is such an archetypal symbol for growth. Trees grow. That’s what they do. They get taller, stronger, and they branch out. And if their branches cross into your neighbour’s property, she has the legal right to cut them off, but I digress. A living tree approach to the constitution is a really great one, but I like this metaphor more so because I think it can be an approach to the craziness we’ve all walked into. I think maybe we should all act like a bunch of trees.

I came into law school with roots, some older than others, some tangled, but all of them keeping me grounded. These are the roots of my academic training, my disciplinary leanings (hooray for cog psych), my experiences all over the world, my family and my friends. All of these roots brought me to UBC Law in one way or another, so it’s safe to trust them to get me through. However, I came to Allard Hall because I want to grow, and yes also because the building is kind of awesome. But mostly to grow. I want to expand my reach, grow taller and see things from the higher branches that I couldn’t see before. During this whirlwind of the first month, this metaphor has really struck a chord with me. In O-Week, we were told to try to achieve and learn as much as we can, while we remember and keep sight of what brought us here. For me, the best way to do that is to remind myself of the living tree approach. And the genius of this method? I actually don’t need to remind myself at all: someone will say living tree around me five times a day! (I’m working on a conspiracy theory that it’s something to do with a secret quota system in Lord Sankey’s will). So, cheers to the first month of 2012 at UBC Law my fellow 1Ls, upper years, and confused med student who clicked the wrong blog, and another big cheers to Lord Sankey!

Hi, I stumbled upon your article while doing research for a history paper. I’m in an undergrad law and society course and I’m studying the Edwards v. Canada case. I found the living tree doctrine the most interesting aspect of this case, as it goes against typical judicial conservatism. It’s funny to hear how much it’s emphasized in law school.

I was wondering if you had any good sources I could use to develop my paper. I’m not necessarily studying the case in the legal sense, but more so in the social and historical aftermath the case produced.

Hi Michael,
Thanks for reading the blog!
I’m by no means an expert on the issue, especially if you’re looking at a non-legal aspect of it. But, I would start by taking a look at constitutional interpretation in general; our go-to place is Peter Hogg’s Constitutional Law of Canada. It may help point you in more relevant directions.
Also, take a look at the following book for some commentary on the effects of Canada’s history of constitutional interpretation.
A living tree: the legacy of 1982 in Canada’s political evolution.
Hope this helps, and good luck with your paper!